SHINOY vs STATE OF KERALA
- Court
- Kerala High Court
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
WEDNESDAY, THE 11 DAY OF NOVEMBER 2026 / 20TH KARTHIKA,
1948
CRL.A NO. 1259 OF 2015
CRIME NO.7/2009 OF Tirur Excise Range Office, Malappuram
AGAINST THE ORDER DATED 29.10.2015 IN SC NO.17 OF 2012 OF
SPECIAL COURT (NDPS ACT CASES), VADAKARA
APPELLANT/ACCUSED:
SHINOY
AGED 32 YEARS
EDAPPATT HOUSE, KONNATHADI VILLAGE,
THINKALKADU DESOM, UDUMBANCHOLA TALUK,
IDUKKI DISTRICT.
BY ADVS.
SRI.MANU TOM
SHRI.BALAMURALI K.P.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
PP M A SHIHAB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
28.10.2026, THE COURT ON 11.11.2026 DELIVERED THE
FOLLOWING:
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“C.R.”
A. BADHARUDEEN, J.
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th
Dated this the 11 day of November, 2026
JUDGMENT
The sole accused in S.C. No.17/2012 on the files of the Court of
the Special Judge (NDPS Act Cases), Vatakara, has filed this appeal
under Section 374(2) of the Code of Criminal Procedure, 1973,
(hereinafter referred to as “the CrPC”), challenging the conviction
and sentence imposed upon him by the learned Special Judge, as per
the judgment dated 29.10.2015.
2. Heard the learned counsel for the appellant and the
learned Public Prosecutor. Perused the records of the Special Court
and the verdict impugned.
3. In this case, crime was registered alleging commission
of offence punishable under Section 20(b)(ii)(B) of the Narcotic
Drugs and Psychotropic Substances Act, 1985, (hereinafter referred
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to as the NDPS Act) by the appellant/accused, when PW1, the
Excise Inspector, Tirur Excise range, while on patrol duty, found
that the appellant/accused herein possessed 5 kgs of ganja in
violation of the provisions contained in the NDPS Act.
4. Upon receipt of the final report, the learned Special
Judge framed charge for the said offence and proceeded with the
trial. During the trial, PWs.1 to 8 were examined, Exts.P1 to P16
and MOs.1 to 2 were marked on the side of the prosecution. No
defence evidence was adduced.
5. Thereafter, on appreciation of evidence, the learned
Special Judge found that the appellant/accused had committed
offence punishable under Section 20(b)(ii)(B) of the NDPS Act.
Accordingly, he was convicted and sentenced as under:
“1) The accused is sentenced to undergo rigorous
imprisonment for 10 (ten) years and also to pay a fine of
Rs.1,00,000/-(Rupees one lakh only) in default, rigorous
imprisonment for one year.
2) Set off u/s 428 Cr. P.C is allowed.”
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6. The learned counsel for the appellant/accused argued
that, in this case, there is serious procedural irregularity in
conducting the trial, which prejudiced the right of the accused in
getting fair trial. It is pointed out that, initially, the evidence of
PWs.1 and 2 was taken by filing their chief affidavits on
09.01.2014, and based on the chief affidavits, the appellant was
given an opportunity to cross-examine them. Thereafter, PWs.3 to 8
were examined in Court by the learned Special Judge without
adopting the procedure of filing proof affidavits and completed
prosecution evidence. It is submitted that, even though the
procedure of recording the evidence of PWs.1 and 2 by filing chief
affidavits was found to be erroneous, and on this basis PW1 was
examined in chief on 03.06.2015, ignoring the chief affidavit, and
on 30.07.2015, PW2 also examined in chief and both of them were
cross-examined by the counsel for the appellant, after the
examination of PWs.1 and 2 on 03.06.2015 and 30.07.2015,
respectively, the investigating officer, who was examined as PW8,
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was not recalled for the purpose of giving the accused an
opportunity to put questions to him regarding the evidence tendered
by PWs.1 and 2. In such circumstances, the verdict impugned would
require interference.
7. Whereas, it is submitted by the learned Public Prosecutor
that, even though the Special Court followed an incorrect procedure
for the examination of PWs.1 and 2 by filing chief affidavits, the
same was rectified by subsequently examining them in chief and
giving the appellant/accused an opportunity to cross-examine them.
According to him, recording the evidence of material witnesses in a
criminal case by filing proof affidavits is a procedure not known to
law. The said procedure was given up by the Special Court itself by
examining PWs.1 and 2 directly. It is pointed out that, when PWs. 1
and 2 were examined, subsequently, they were cross-examined by
the appellant/accused, and during cross-examination, no
contradictions were brought out in any form warranting the
examination of the investigating officer to get the same proved.
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Therefore, no prejudice was caused to the accused/appellant.
Accordingly, the learned Public Prosecutor pressed for confirmation
of the verdict impugned.
8. Adverting to the rival contentions, the points that arise
for consideration are:
(i) Whether the Special Court is justified in finding that the
appellant/accused committed the offence under Section
20(b)(ii)(B) of the NDPS Act?
(ii) Whether the impugned verdict would require
interference?
(iii) The order to be passed?
Point Nos. (i) to (iii)
9. First of all, it is necessary to address the infirmity in the
procedure adopted by the learned Special Judge in the matter of
examination of PWs.1 and 2, who were initially examined by
getting their chief affidavits in lieu of chief examination, as on
09.01.2014. Thereafter, PWs.3 to 8 were also examined, and the
prosecution evidence was completed. In this connection, it is
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relevant to note that the recording of evidence of witnesses in
criminal cases is not permitted under the CrPC or under Bharatiya
Nagrik Suraksha Sanhita, 2023, though such a procedure is
permissible in a prosecution launched under the Negotiable
Instruments Act. Therefore, the procedure adopted by the learned
Special Judge initially, by examining PWs.1 and 2 by getting their
chief affidavits, is illegal. Here, the learned Special Judge himself
corrected the wrong procedure, and accordingly, PW1 was
thereafter examined in chief on 03.06.2015 and PW2 on 30.07.2015.
Thus, the illegal procedure, was corrected by the learned Special
Judge himself, giving the accused/appellant an opportunity to cross-
examine them. It is true that after the examination of PWs.1 and 2,
PW8, the investigating officer, was not recalled or re-examined for
the purpose of getting any contradictions proved. It is the settled law
that when the procedure adopted during trial is found to be vitiated
and the same caused prejudice to the accused, it would stand as an
act detrimental to the interest of the accused in the matter of
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providing fair trial. In such situations, the trial may be held to be
illegal, which would result in setting aside the judgment so
rendered. However, when the procedure followed in no way caused
any prejudice to the accused, upsetting the verdict, so delivered is
not necessary.
10. Coming to the evidence, PWs.1 and 2 are the officers
who noticed the possession of contraband by the appellant and
detected the same. The evidence of PW1 is that, while he was on
patrol duty on 04.10.2009, upon receiving information from a
person that the accused was possessing ganja, he recorded the said
information (Ext.P1) and conveyed the same over the phone to his
superior officer. He further stated that, after conveying the
information, he and his party proceeded to the spot, where the
accused was found with a bag. When he asked about the contents of
the bag, the accused stood perplexed. Then he had informed the
accused of his intention to search his body and of his right to be
searched before a Gazetted Officer or a Magistrate. On receiving a
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reply from the accused that, he could be searched by PW1 himself,
he obtained the same in writing. Ext.P2 is the said consent memo
signed by the accused. Even then, PW1 secured the presence of
PW4, the Excise Circle Inspector, who is a Gazetted Officer.
Thereafter, PW1 searched the body of the accused in the presence of
a Gazetted Officer, but nothing was seized. He then searched the
bag held by the accused, and when it was opened, he had found
ganja therein. Accordingly, PW1 arrested the accused by preparing
Ext.P3 arrest memo. Thereafter, he weighed the ganja and found its
weigh as 5 kgs. Then he took two samples of 25 grams each in
polythene covers. According to him, the samples were taken, sealed
and the necessary labels were affixed. The contraband article was
seized under Ext.P6 seizure mahazar. Thereafter, he took the
accused and the articles to Range Office, then he had registered
Ext.P7 crime and occurrence report. According to PW1, he had sent
Ext. P8 Form ‘F’ Report, under Section 57 of the NDPS Act to his
superior officer. PW1 testified that, as per Ext.P12 property list, he
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had produced the samples and other articles before the Court. He
identified the same as Mos.1 and 2. He also identified the accused at
the dock.
11. The accompanying officer, examined as PW2, also given
evidence supporting the prosecution case. He stated that he was
present, when PW1 arrested the accused and seized the contraband
article. PW2, in fact, supported the evidence of PW1 without any
material contradictions. As deposed by PW1, 5 kgs of ganja were
seized as per Ext.P6 seizure mahazar. In order to support the
evidence of PWs. 1 and 2 regarding the recovery, the prosecution
examined PW5, an independent witness. During chief examination,
he deposed that he had not witnessed the seizure of ganja and that
he did not know the accused at the dock. On getting permission to
declare him hostile, the learned Public Prosecutor put leading
questions to him under Section 154 of the Evidence Act, and during
this questioning, PW5 deposed that he had put his signature on the
document prepared by the Excise officials at the waiting shed of the
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bus stop at KG Padi. During further questioning, he even admitted,
in response to a suggestion that he had signed Ext.P6 mahazar when
the ganja was seized from the accused. During cross-examination by
the counsel for the accused, he also reiterated that he had put his
signature in Ext.P6. Thus, it could not be held that PW5, though
declared hostile during his cross-examination by the learned Public
Prosecutor, he admitted the recovery of ganja as per Ext.P6, though
he did not initially support the prosecution. Here, even though
PWs.1 and 2 were subjected to searching cross-examination,
nothing was elicited to discredit them in any manner. The Gazetted
Officer, examined as PW4, in whose presence the accused was
searched and the contraband were recovered, fully supported the
prosecution case.
12. The defence case suggested during the cross-examination
of PW1 is that the accused was arrested when he was found at odd
hours and then he was implicated in this by using abandoned ganja.
In this connection, it is relevant to note that nothing has been
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brought out in evidence to prove this case. Moreover, animosity on
the part of PWs.1 and 2 to falsely implicate the accused in this
crime also in no way established. PW6 is the Village Officer who,
as required by the investigating officer, prepared and produced
Ext.P16 sketch of the place of detection, given evidence in this
regard. PW3 is the C.I. of the Excise Special Squad who conducted
investigation. Ext.P15 is the positive Chemical Examination Report
proved through him. PWs.5, 7 and 8 are the Excise Circle Inspectors
who conducted the investigation. PW7 filed the charge sheet against
the accused. Thus, by the evidence of PWs.1 and 2, would show that
5 kgs of ganja possessed by the appellant was recovered and
samples thereof were taken in a tamper-proof manner and the same
were produced before the Court in time. That is the reason why the
learned counsel for the appellant did not raise any ambiguity in the
evidence of PWs.1 and 2, though he has pointed out the procedural
anomaly as extracted hereinabove.
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13. As regards non-compliance of Section 42 of the NDPS
Act, even though a contention was raised before the Special Court,
the said contention was negatived by the learned Special Judge for
the reasons stated in paragraph 18 of the Judgment. However, the
said contention is not raised before this Court. Similarly, regarding
compliance of Section 50 of the NDPS Act, no challenge was raised
in this case, where the search was conducted in the presence of a
Gazetted Officer, who was examined as PW4, even though Section
50 has no impact in the instant case, where on body search, nothing
was recovered. The same is the position with regard to compliance
with Section 57 of the NDPS Act.
14. In the instant case, going by the evidence of PWs.1 and
2, supported by Ext.P15, MOs.1 and 2, and the evidence of PW8,
the investigating officer, the possession of 5 kgs of ganja by the
accused/appellant is established.
15. Now, the crucial question to be decided is whether non-
examination of the investigating officer, who was examined as
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PW8, after examination of PWs.1 and 2, subsequently, after
eschewing their evidence given in the form of chief affidavits,
caused prejudice to the appellant/accused, as contended by the
learned counsel for the accused.
16. It is well-settled law that normally the investigating
officer who recorded the previous statements of the witnesses would
be examined after the examination of the said witnesses with a view
to facilitate proof of contradictions brought out during the
examination of the material witnesses. In the instant case, the
evidence of PWs.1and 2 was initially recorded by getting their chief
affidavits, and the learned counsel for the accused/appellant had
also cross-examined PWs.1 and 2. Even though the said procedure
is illegal, either during cross-examination of PWs.1 and 2 on the
basis of chief affidavits or during cross-examination of PWs.1 and
2, when they were examined subsequently, on perusal of the
evidence of PWs.1 and 2, no contradictions, either in the form of
denial of previous statements or in the form of omissions, found to
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be extracted. It is, in this context, this Court is to consider whether
any prejudice was caused to the accused in the matter of non-
examination of PW8.
17. Here, as already discussed, during the further chief-
examination and cross-examination of PWs.1 and 2, nothing was
elicited warranting the recall and re-examination of the
Investigating Officer, and the necessity for doing so was also not
pointed out before this Court. As stated, apart from merely
submitting that the non-examination of the Investigating Officer
caused prejudice to the appellant/accused, the learned counsel for
the appellant in no way disclosed how such prejudice was caused.
Thus, in the facts of this case, it is held that no prejudice was caused
to the accused by the recall and re-examination of PW8 after the
examination of PWs.1 and 2.
18. Another contention raised is that, after the examination
of PWs.1 and 2, after eschewing of their evidence, given by way of
chief affidavits, no questions were put to the accused under Section
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313 of the CrPC. However, when this Court verified the statement
under Section 313, this contention was found to be not justified, as
it is discernible that, after the examination of PWs.1 and 2, ignoring
their evidence given by way of chief affidavits, the incriminating
circumstances brought out from their evidence were put to the
accused and his answers thereto were recorded. Therefore, this
contention is of no avail to the appellant.
19. To sum up, on re-appreciation of evidence, this Court is
of the view that the Special Court rightly entered into finding of
conviction, hoding that the appellant/accused committed the offence
punishable under Section 20(b)(ii)(B) of the NDPS Act. Therefore,
the said conviction is liable to be confirmed. Coming to the
sentence, the learned Special Judge imposed sentence of
imprisonment for a period of ten years and a fine of Rs.1,00,000/-.
Since the quantity of ganja involved is intermediate, modification of
sentence can be considered.
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In the result, this appeal is allowed in part. The conviction
imposed by the learned Special Judge for the offence under Section
20(b)(ii)(B) of the NDPS Act is confirmed. The sentence stands
modified as under:
(i) The appellant/accused is sentenced to undergo
rigorous imprisonment for four years and to pay
fine of Rs.50,000/- (Rupees Fifty Thousand only)
for the offence punishable under Section 20(b)(ii)
(B) of the NDPS Act. In default of payment of fine,
he shall undergo imprisonment for a period of six
months.
(ii) Set-off is allowed.
(iii) The bail bond executed by the appellant/accused
shall stand cancelled. The order suspending
sentence and granting bail to the appellant/accused
stands vacated, with direction to the
appellant/accused to appear before the Special
Court forthwith to undergo the sentence, failing
which the Special Court is directed to execute the
sentence, without fail.
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Registry is directed to forward a copy of this judgment to the
Special Court concerned for information and compliance.
Sd /-
A. BADHARUDEEN
JUDGE
GBG